USCA1 Opinion
November 23, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1650
ACENET RAMOS-ALBELO,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH & HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Jessie M. Klyce,
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Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
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Per Curiam. Claimant, Acenet Ramos-Albelo, appeals
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from the judgment of the district court upholding the
decision of the Secretary of Health and Human Services that
she is not eligible for Social Security disability benefits.
BACKGROUND
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Claimant filed an application for disability
benefits on January 3, 1990. She alleged an onset date of
March 13, 1983, listing as impairments epilepsy, a fracture
and dislocation of her left elbow, a heart condition,
arthritis, high blood pressure, a mass in her right breast
and a stroke. Claimant's insured status expired on September
30, 1983. Claimant's application was denied initially and
upon reconsideration. An administrative law judge (ALJ) held
a hearing on November 5, 1990. In a decision dated December
6, 1990, he determined that claimant could perform her past
work. The ALJ first evaluated the exertional
impairments resulting from claimant's degenerative joint
disease and from an accident that occurred in May 1983. At
this time, claimant fell, fracturing and dislocating her left
elbow. Although claimant's left arm had been in a cast
during part of the insured status period, the ALJ found that
by September 30, 1983, claimant had shown "marked
improvement" in the upper part of her left arm, with movement
of the wrist within normal limits. Also within normal limits
were left hand pronation (the ability to turn the palm of the
hand downward by medial rotation of the forearm) and
supination (the ability to turn the palm of hand upward by
lateral rotation of the forearm). In addition, claimant
could, at this time, make a fist and pinch; the strength in
her left arm was found to be acceptable after 35 sessions of
physical therapy.
The ALJ next determined that claimant's
hypertension was amenable to treatment and that the medical
evidence did not reveal any cardiovascular complications from
this impairment. As for her high blood pressure, the ALJ
noted that during the insured status period, claimant had not
been complying with the prescribed treatment. Claimant does
not question these findings. In relation to claimant's
history of epilepsy, the ALJ reviewed the record and pointed
out that claimant had not been followed medically for this
condition during the relevant period of time; also, according
to a medical note dated September 23, 1983, claimant's last
seizure had occurred one year earlier, in 1982. The ALJ's
final determination was that claimant's degenerative joint
disease did not limit her in any way.1
The ALJ made the following findings: (1) claimant
suffered from a combination of impairments (epilepsy,
hypertension, vascular disease and degenerative joint
disease) which, although severe, did not meet or equal the
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1. He also rejected the claim of a mental impairment on the
ground that there was no evidence that claimant was ever
treated for such a condition prior to the expiration of her
insured status. We add that the same is true for the alleged
thyroid and stroke conditions, as well as for the mass found
in claimant's breast. Again, claimant does not dispute these
conclusions on appeal.
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Listing of Medical Impairments; (2) claimant's complaints of
severe, disabling pain were credible only to the extent that
she was limited to the performance of the exertional demands
of light work; (3) claimant had the residual functional
capacity to engage in such work except that she could only
occasionally lift and carry objects weighing 25 pounds or
more, could frequently carry and lift objects weighing 10
pounds and could not be exposed to unprotected heights and
moving machinery; (4) claimant's past work as a sewing
machine operator and candy store attendant did not expose her
to the above restrictions; and (5) claimant was not disabled
at step 4 of the sequential evaluation process. See 20
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C.F.R. 404.1520(e). The ALJ's decision became the final
decision of the Secretary when the Appeals Council denied
claimant's request for review.
DISCUSSION
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A claimant for Social Security disability benefits
bears the initial burden of establishing that she cannot
perform her former type of work. Goodermote v. Secretary of
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Health and Human Services, 690 F.2d 5, 7 (1st Cir. 1982). In
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reviewing the Secretary's conclusion that claimant could
perform such work, our only inquiry is whether this decision
is supported by substantial evidence. See Bianchi v.
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Secretary of Health and Human Services, 764 F.2d 44, 45 (1st
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Cir. 1985) (per curiam). We also keep in mind that "[i]t is
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the responsibility of the Secretary to determine issues of
credibility and to draw inferences from the record evidence."
Irlanda Ortiz v. Secretary of Health and Human Services, 955
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F.2d 765, 769 (1st Cir. 1991) (per curiam).
On appeal, claimant essentially raises four
arguments: (1) the ALJ erred in not crediting her allegations
of severe pain; (2) claimant's epilepsy prevents her from
performing her past work; (3) there is no evidence that
claimant could meet the exertional demands of her work as a
candy store assistant; and (4) claimant did not spend
sufficient time at any of the past jobs the ALJ determined
she could perform, thereby precluding him from considering
them as "past relevant work."
Before turning to the merits of these arguments, we
note that claimant did not object to the magistrate judge's
findings concerning her subjective complaints of pain. She
also did not object to the failure of the magistrate judge to
address the question whether her former jobs qualified as
"past relevant work" as defined in 20 C.F.R. 404.1565(a).
"[O]nly those issues fairly raised by the objections to
magistrate's report are subject to review in the district
court and those not preserved by such objection are precluded
on appeal." Keating v. Secretary of Health and Human
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Services, 848 F.2d 271, 275 (1st Cir. 1988) (per curiam).
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We do not think that the fact that the latter claim was not
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addressed by the magistrate judge absolved claimant from the
responsibility of objecting to its omission.
Nonetheless, we agree with the Secretary's decision
not to credit claimant's allegations of disabling pain.
Although the fracture and dislocation of her left elbow are
the kind of injuries that produce pain, the record does not
support the conclusion that the pain continued to be as
severe as alleged. In addition to the ALJ's findings, supra,
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in a medical note dated June 22, 1983 to which claimant
refers in her brief, the examiner specifically noted that
claimant reported only "occasional pain and discomfort."
Also, claimant visited the Puerto Rico Medical Center on
September 23, 1983 where she listed many complaints including
headaches, blurred vision, dizziness and chest pain.
However, she did not complain of pain in her left elbow or
any other joint at this time. Indeed, the only reference to
her extremities was a note that claimant presented with edema
in one of her legs. Finally, at the end of her insured
status period, the only restriction noted was a 5 degree
limitation in extension of her left forearm.
Although "complaints of pain need not be precisely
corroborated by objective findings . . . they must be
consistent with medical findings." Dupuis v. Secretary of
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Health and Human Services, 869 F.2d 622, 623 (1st Cir. 1989)
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(per curiam). As the ALJ noted, there is a conspicuous
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absence in the record of medical findings -- swelling,
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tenderness, spasm, muscle atrophy or weakness, sensory or
motor deficits, or limits in claimant's range of motion --
associated with the presence of chronic pain in the context
of degenerative joint disease or arthritis. Moreover, the
ALJ's credibility determination is entitled to deference
where there are specific findings to support it. Frustaglia
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v. Secretary of Health and Human Services, 829 F.2d 192, 195
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(1st Cir. 1987) (per curiam). Here, the residual functional
capacity (RFC) assessments of two non-examining physicians
who reviewed the entire record both indicated that claimant's
conditions did not impose any exertional limits on her
capacity to work. See Bianchi, 764 F.2d at 45 (Secretary not
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required to take claimant's complaints of pain "at face
value" especially where medical reviewers opined that
claimant was not physically impaired).
Next, claimant contends that her epilepsy prevents
her from doing either of her past jobs. She relies on the
RFC assessments which determined that she must avoid hazards
such as machinery because of this nonexertional impairment.
She argues that operating a sewing machine falls within this
prohibition. Although we think that it would have been
preferable had the ALJ elicited more testimony from claimant,
or even a vocational expert, concerning the specifics of her
past job duties, we find that the evidence of record is
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insufficient to raise a meaningful question regarding
claimant's inability to perform her past type of work.
Although it is not precisely clear what sorts of
"machinery" constitute a hazard to an epileptic, we do not
agree with claimant that the prohibition extends to all
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machinery. Social Security Ruling 85-15 addresses, in part,
the effects of a nonexertional impairment on an individual's
occupational base. In relation to environmental
restrictions, the ruling states that "[s]urroundings which an
individual may need to avoid because of [such an] impairment
include those involving . . . recognized hazards such as
unprotected elevations and dangerous moving machinery. . . ."
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SSR 85-15, reprinted in West's Social Security Reporting
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Service 343, 351 (1992) (emphasis added). Even assuming that
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a sewing machine is such a machine, we do not think that
claimant is precluded by this limitation from performing her
other past work as a candy store assistant.
In a vocational report, claimant described her
duties at this job as selling candy, making popcorn,
collecting money from customers and filling the candy
display. In her brief on appeal, she merely asserts that her
work involved "the use of machines, tools or equipment." She
did not provide further details in the brief or at any stage
in the administrative proceedings. "[I]t is the claimant,
not the Secretary (or ALJ), who has the burden of proving
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inability to perform her former type of work." Gray v.
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Heckler, 760 F.2d 369, 372 (1st Cir. 1985) (per curiam).
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This burden "necessarily includes an obligation to produce
evidence on that issue." Id. As we pointed out in Gray,
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claimant must not only show that she cannot do her former
job, she must demonstrate that she cannot "return to her
former type of work." Id.
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Claimant had the opportunity to present evidence
concerning the nature of her past work but failed to do so.
Thus, in the absence of any description of the specific
machinery claimant was required to operate at the candy
store, we cannot say that the Secretary erred in determining
that she could still perform this work. In any event, it is
reasonable to assume that not all candy stores have popcorn
making machines and that not all candy store assistants are
even required to use any machinery whatsoever. Thus, it is
fair to say that claimant also failed to establish that she
could not engage in her former "type" of work. See id.
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The same principles apply to claimant's assertions
that she could not meet the exertional demands of her job at
the candy store and that it did not qualify as "relevant past
work." As for the first argument, claimant relies on her
statement in the vocational report that she was required to
carry boxes of popcorn which weighed between 10 and 15
pounds. She then points out that the ALJ determined that she
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could "frequently" lift and carry only 10 pounds. Because,
she states, there is no evidence in the record as to how
often she had to actually lift and carry objects weighing
over 10 pounds, the ALJ erred in finding that she could
fulfill the exertional demands of this job.
The vocational report form filled out by claimant
specifically asked her to indicate the weight "frequently
lifted and/or carried." She declined, or neglected, to
provide this information. Because she had the burden of
proof on the question whether she could perform her prior
work, she may not rely on gaps in the record created by
herself. We again note in this context, however, that the
ALJ also has a responsibility to develop this kind of
information. See SSR 82-62, reprinted in West's Social
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Security Reporting Service 809, 812 (1983) (Secretary must
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make "every effort" to secure evidence regarding ability to
do past work).2
As we stated, supra, claimant has waived the
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argument concerning whether her past job qualifies as "past
relevant work." Even if the argument had been preserved for
appeal, however, we find that it has no merit. Essentially,
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2. We reject out of hand claimant's argument that because
she "presumably" would need to use and flex her arms, she was
precluded from performing the demands of her job. Simply,
the only evidence of record concerning such limitations are
the two RFC assessments and these did not indicate any
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restrictions on such activities.
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claimant points out that she had three semi-skilled jobs in
the same year. She then refers to the fact that there is no
evidence in the record that shows the amount of time she
spent at each job. Thus, although not entirely clear, she
apparently concludes that she did not work a sufficient
amount of time at any of the jobs to have been able to learn
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how to do them. See 20 C.F.R. 404.1565(a) (past relevant
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work is work that lasted long enough for a claimant to have
learned how to do it). Given the fact that she never
introduced any evidence to suggest that the length of time
she actually worked was insufficient to master the job
requirements of a candy store assistant, this argument is
specious at best. See Dudley v. Secretary of Health and
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Human Services, 816 F.2d 792, 794 (1st Cir. 1987) (per
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curiam).
For the foregoing reasons, the judgment of the
district court is affirmed.
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